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This is not legal advice. You should always seek the advice of an attorney who is qualified in Veterans' law before you make any decisions about your own benefits. Visit Stateside Legal (below) for assistance with legal issues.

NOTE: Letters in my Q&A columns are reprinted just as they come to me. Spelling and grammar are left as is and only small corrections are made to improve readability, ensure anonymity or delete expletives that may offend some readers. This is not legal advice. You should always seek the advice of an attorney who is qualified in Veterans' law before you make any decisions about your own benefits.

Prostate Cancer

Any veteran diagnosed with prostate cancer has a tough decision to make.

Will he choose to treat the cancer or will he decide to live with it? The need for treatment is hotly debated and has been for years. One thing is for sure...treatment leaves most men impotent and with urinary incontinence for life.

For the Vietnam veteran the decision becomes more complex. A diagnosis of prostate cancer in the RVN vet is a "presumptive" condition and the VA cedes that due to the veterans exposure to agent orange, the cancer is service connected and rated at 100% disabling.

Once treated the cancer is gone and the 100% rating for cancer is no longer applicable. VA then turns to the "residuals" of treatment to rate the veteran. Residuals are secondary effects related to the surgery or radiation that occurred to "cure" the prostate cancer. The usual residuals are incontinence (leaking, requiring the use of pads or "adult diapers") and impotence (erectile dysfunction).

The usual rating for the residuals will fall between 20% and 60% and often require appeal to reach a proper decision.

Interestingly, the veteran who chooses "watchful waiting" and does not get treated will retain the 100% rating until he dies...usually death comes from another cause, not the cancer.

How does that happen? Simple...a diagnosis of cancer calls for 100%. Once treated the cancer is gone. The veteran can't be rated for 100% if the cancer isn't there. With watchful waiting the cancer remains intact and the 100% rating is required.

The decision must be made in close consultation with a physician you trust. Keep in mind that there is no rush to have anything done after a diagnosis of prostate cancer. Take plenty of time to read and study and to talk to your family. Whatever you decide will be the right decision for you.

Over the course of the study almost half of the 731 men who chose to participate died. But only 52, or 7 percent of the total, died from prostate cancer. There was no significance difference in the number of deaths among the patients assigned to waiting versus surgery.

Note: When evaluating any claim involving loss or loss of use of one or more creative organs, refer to §3.350 of this chapter to determine whether the veteran may be entitled to special monthly compensation. Footnotes in the schedule indicate conditions which potentially establish entitlement to special monthly compensation; however, there are other conditions in this section which under certain circumstances also establish entitlement to special monthly compensation.

4.115 - Nephritis

4.115a - Ratings of the Genitourinary System - Dysfunction

4.115b - Ratings of the Genitourinary System - Diagnoses

7528 Malignant neoplasms of the genitourinary system 100%

Note: Following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of §3.105(e) of this chapter. If there has been no local recurrence or metastasis, rate on residuals as voiding dysfunction or renal dysfunction, whichever is predominant.

PROSTATE CANCER AND THE VIETNAM VETERAN

Jim Strickland Published on VAWatchdog dot Org

It is widely known and accepted that men and women who served in Vietnam were exposed to a chemical that has caused significant health concerns. Whether you refer to it as Agent Orange, a defoliant, an herbicide or dioxin, anyone that served with their boots on the ground of the Republic of Vietnam received some dose of the chemical.

Over the years the Department of Veterans Affairs (the DVA or just "VA") has ceded that there are known health risks that stem from this exposure. During the decades following the end of that war, there has been a list of conditions that are presumed to have been caused, contributed to or aggravated by the exposure to Agent Orange.

The "Presumptive List" isn't without its detractors and controversy. If a 63 year old Vietnam veteran is diagnosed with lung cancer this year, was it the long term effects of his pack a day cigarette habit that caused the disease or was it the effect of exposure to dioxin in 1967? While it's impossible to determine an answer to each individual case, the law is clear; The VA must default to a presumption that the tumor is connected to the RVN service and the award of benefits is mostly on autopilot with no proof of cause and effect required.

The same is true of prostate cancer. The veteran who has a history of Vietnam service and who is today diagnosed with prostate cancer will be awarded service connected disability benefits for the condition. Prostate cancer is presumed to be connected to the vet's RVN service and exposure to Agent Orange.

Whether a man is a Vietnam veteran or not, to think about prostate cancer is to accept that many of us are going to get the disease sooner or later. It's almost another rite of passage for men as they age.

Any discussion about the diagnosis and treatment of prostate cancer becomes contentious almost immediately. To screen via the Prostate Specific Antigen (PSA) test or not to screen? Does the Digital Rectal Examination (DRE) of the prostate make for a better diagnosis or is it simply a test designed to make a man cringe? The PSA test tries to identify a trend of a rise in the level of the PSA marker that would indicate that there may be a problem while the DRE allows the examiner to feel hardened lumps that may be tumor.

If either of those tests are positive, the man is usually referred to a urologist who will then take a biopsy of the prostate gland itself. The biopsy process is also an imperfect diagnostic tool. Consider that the surgeon is trying to locate a tumor (or tumors) that may be the size of a BB in an organ that is the size of a walnut. He stabs at it with a needle, more or less blindly, in hopes of retrieving some few cells that can be diagnosed to show cancer or not. If he misses the tumor you may get a clean bill of health but still carry the cancer. If a good specimen is obtained, the tumor hit may be a low grade of cancer while the tumor missed may be a higher grade and much more aggressive.

If you're the Vietnam veteran (or any man) with a suspected or even a confirmed prostate cancer, you have a lot of decisions to make. Those decisions are hard enough but for the RVN vet they get even more convoluted...more on that in a moment.

The New York Times recently published a great article about the most recent international studies about men and their prostates.

The bottom line, according to columnist Tara Parker-Pope is that, "...two major studies from the United States and Europe found that P.S.A. testing — the annual blood test used to screen men for prostate cancer — saves few, if any, lives while exposing patients to aggressive and unnecessary treatments that can leave them impotent and incontinent."

The very words, "impotent and incontinent" are enough to strike terror into the hearts of the most decorated combat veteran. If the shouts of "incoming" didn't frighten you back then, those words surely will.

Is that what awaits us...erectile dysfunction and a change of diapers 6 times each day?

Maybe, maybe not.

Ms. Parker-Pope's article describes some of the more modern thinking about whether or not a man should even bother with screening. It's easy to accept that a man of age 70 or so who is diagnosed with prostate cancer may easily choose to leave it be. Most prostate cancers are very slow growing and take as long or longer than 10 years to cause a death. In that case, the treatments available...radical surgery and/or intensive radiation therapy may cause his death long before the 10 years has passed.

If you're younger than 70 but you have other health care issues that are likely to cause your demise, again...you may wish to ignore the prostate cancer and avoid the side effects of treatments.

Choosing your treatment, should you decide to be treated, is ultimately one of the most important decisions you'll ever make. My mailbag is peppered weekly with veterans who have made successful recoveries after surgery and they are returning to work and those who are just miserable with a constant leakage they didn't anticipate.

The topics of screening and then treatment are ones you should begin to discuss with your doctor now. Learn about the options that you may have and if you don't care for the sound of that, seek out what other options may be available to you. Ask about fee basis if your local VA Medical Center (VAMC) isn't doing a lot of prostate treatment. Inquire as to what treatments are popular in your VAMC and ask around to speak with others who have received treatment there. If another veteran is happy and doing well, you're more likely to have that result.

One of the topics that I don't believe Ms. Parker-Pope covered very well is the treatment of no treatment at all. The term "Watchful Waiting" describes an accepted method of tracking the progress of a known prostate cancer after diagnosis.

I promised a focus on the Vietnam veteran diagnosed with prostate cancer.

Whether or not one accepts that the Vietnam vet's prostate cancer has any connection to exposure to Agent Orange, the rules are well established and that veteran is eligible for disability compensation benefits upon diagnosis and the beginning of treatments. The application for benefits isn't automatic and the veteran should proceed immediately to begin the process of filing for the benefit. Although the award is a foregone conclusion, the Veterans Benefits Administration (VBA) will all too often make hash-work of the application and deny the benefit for various reasons. In that way the application is no different than any other so you're wise to begin ASAP.

The Vietnam veteran is awarded 100% disability as of the date that the application for his benefit is received by his Regional Office. The VA assumes that the treatment will be totally disabling but won't be a permanent condition. If the PSA level and biopsy are used as the markers of having an active cancer, with treatment both of those will return to a normal state.

At that point the treated veteran no longer has prostate cancer. If he doesn't have prostate cancer he can't be awarded a benefit for it. Thus, usually at about the 6 month mark, the veteran is called in for a Compensation and Pension (C&P) examination with a goal to set the rate of compensation to equal the disabling effects of treatments...the "residuals".

Incontinence or "leaking" is the usual residual measured by VA to determine the rate of compensation. The degree of incontinence is measured by how many pads or diapers a man must use each day and the rate is correspondingly higher with the number of pads used.

The veteran may also claim Erectile Dysfunction and receive a Special Monthly Compensation (SMC) benefit known as SMC-K. The SMC-K benefit is on the books as "loss of a creative organ" and although the veteran impaired by erectile dysfunction hasn't lost the organ, he's lost use of it for procreative purposes and is entitled to the SMC-K benefit in addition to the regular rated compensation.

The usual amount of the after-treatment benefits I see range from 30% to 60% plus the SMC-K add-on.

For the Vietnam veteran who chooses watchful waiting as his treatment, this becomes more interesting. Let's do a quick fact check.

Keep in mind that watchful waiting is a treatment. Upon diagnosis and beginning of treatment, the veteran is awarded 100% disability compensation. The 100% is reduced to compensation of residuals of treatment once the condition no longer exists.

For the veteran choosing watchful waiting, there is no end point to the watchful waiting treatment. Until he elects surgical or radiation treatment or dies of either the prostate cancer or another condition, he will remain rated as 100% disabled.

One of the things that our VA does best is screening us for all kinds of problems. VA learned long ago that testing and screening is a cost effective approach to our care. We're often screened for our blood pressure, lipid profiles, colon cancer, hepatitis, diabetes and much more. Our flu shots, pneumonia shots and diabetes medications come to us earlier than almost any other group of patients anywhere.

Now we must decide...to screen for prostate disease or not? If we decide that we want to, do we accept treatment or not? If we accept treatment, what will the treatment be and who do we want to deliver it?

Finally...for the Vietnam veteran who was leaning toward watchful waiting...now you've learned of a financial incentive. I've communicated with a couple of Vietnam veterans who chose watchful waiting years ago. They wrote to me to ask when the 100% payments would end? They were surprised (I was too) that after 5 and 6 years of watchful waiting, nobody at VA had contacted them about their generous benefit. They were doing well and held the same jobs they had when they were diagnosed.

Talk with your primary care provider and review that New York Times piece with him or her. The time to ponder your options is now, while you're feeling well and your prostate is enjoying its own good health. It's the smart thing to do. Waiting until the doc walks into that exam room and tells you, "You have a cancer!" is only going to make all this even more difficult and confusing.

November 2007

Jim, I am contacting you in regard to my husband. In 2002 He was diagnosed with serviced connected prostate cancer. He was given a rating of 100%. He had a radical prostatectomy. Two months later his PSA started to rise again, which of course, indicated that the cancer was back and had metastasized. He was started on radiation and during the treatments his PSA continued to rise. They stopped the radiation and started him on chemo and hormone therapy. His last hormone injection was in 2005. At that time his PSA was undetectable. In 2004 the VA gave him a 100% P&T rating saying that no future exams would be scheduled. By the way, we lived in (State #1) at the time. We moved to (State #2) in the spring of 2005 to be close to kids and grandkids. About a year ago we got a phone call from QTC Management that he was scheduled for re-exam.

The VA started proceedings to lower his rating, because they said the cancer was gone. We were told that the cancer would come back in the future, because the hormones just deterred it for awhile. In January of 2007, his PSA became detectable again. This is during the time the VA was re-rating him. We got a letter last week of their decision to definitely lower his rating down to 60% due to the fact that his cancer was better. The 60% was for incontinence.

Yesterday, October 9, 2007 he was told by the VA urologist that the cancer was back and now has to see their oncologist soon to see what the next course of action will be. My question to you is; how do we handle this with the VA when they are now going to lower his rating to 60%, because his cancer was "better". By the way in 2002 when he was originally diagnosed with cancer, his Gleason score was 8. The VA in (State #1) said that they would have never rescheduled him for another appointment to begin with. Isn't this supposed to be a government thing not a state wide issue? With what my husband and our family is going through we should not be going through an appeal process at this time.

HELP!!

Answer:

What you are experiencing is routine...frustrating and painful but routine. If you will please spend a few minutes reading through the archives of my work, you'll see where I've written about this in the past. In the VBA, nothing is “Permanent and Total” even when they use those very words.

You've also pointed out a major issue that has been argued many times...there is a lot of inconsistency from Regional Office (RO) to Regional Office. One RO may be generous with benefits and the neighboring office may be much less generous in their rulings. Filing a claim at a given RO seems to be like choosing a slot machine in Las Vegas...you never know which machine may be lucky that day.

Prostate cancer (and many other cancer) patients are given a 100% rating during treatment. It should have indicated that it was temporary "future exams are scheduled" in that original award letter. To receive a “no future exams” award with a diagnosis of prostate cancer is most unusual in my experience.

The thought process is that during treatment the Veteran will be sick...too sick to hold gainful employment and temporarily deserves that 100% disabled rating but that after treatment, he'll likely be “cured” of the cancer.

The cancer is usually undetectable and the Vet is not totally disabled. If there is a "residual" left from treatment, it is compensated at a lower rate. In your case you say that the residual is incontinence.

We always must remember that a VA disability award is given for a "disability", not because you have a "condition". If your condition is not disabling, there is no compensation.

In the VA system "Disabling" or "Disabled" is defined as how much the condition theoretically could cause you to lose in earnings in the workplace. That's the reason for percentages. Whereas, for example, another big disability system...SSDI run by the Social Security System...only grants 100%, no percentages or degrees. In that system you're either able to work or you aren't.

When you get the letter proposing a reduction, you have 30 days to "timely respond" and advise that you want a hearing and you want the payments left as they are. VA will get around to telling you that if you leave the payments at 100% and you lose a year down the road, you must repay the difference...usually as deductions from future payments. If you don't want a personal hearing and if you don't want to risk the payment offset, you can respond in 60 days and in written argument, tell VBA why your payments should stay at 100%. Or, of course, you can do nothing and let the VBA action happen.

It's my experience that the request to leave payments as they are is often ignored and they will reduce your payments anyhow. If you win your appeal, those will be paid back to you. You may want to prepare yourself for the reduction, just in case.

Ultimately, you will win this as you have proof positive his cancer has recurred and therefore it was never really gone. You should get as a NOD to your VARO with a letter signed by a doctor. In my archives are articles on how to get a good doctor letter from a VA doc.

While this is bouncing back and forth in appeals, you should be prepared for the financial hardship of a reduced payment for as much as a year or more. Your case is a no-brainer...he will prevail, but it can now become very confusing while letters cross in the mail.

Finally...once again, if you read my articles in my archives you'll see I'm not a supporter of the VSO services provided by the DAV.

When you faxed that letter to DAV all that will happen is that an intermediary will resend it to the VA on your behalf. It may rest at DAV offices for a day or a week or more before that happens. You could have sent it directly to the VA yourself and been sure of what happened to it.

I am not a fan of fax machines. Even though you got a comforting message from your machine verifying delivery, on the other end the copy paper may have jammed and it's unreadable. I advise my readers to only use registered mail, return receipt requested. That way you have a signature on a card that tells you your clean copy was delivered to the VA.

Re-exams are a way of life once you have a 100% disabled rating. Until you've held your 100% rating for 20 years and more, you can anticipate that you may receive a letter ordering you to report for re-examination. Below are some of the regulations controlling this.

§ 3.327 Reexaminations.

(a) General. Reexaminations, including periods of hospital observation, will be requested whenever VA determines there is a need to verify either the continued existence or the current severity of a disability. Generally, reexaminations will be required if it is likely that a disability has improved, or if evidence indicates there has been a material change in a disability or that the current rating may be incorrect. Individuals for whom reexaminations have been authorized and scheduled are required to report for such reexaminations. Paragraphs (b) and (c) of this section provide general guidelines for requesting reexaminations, but shall not be construed as limiting VA's authority to request reexaminations, or periods of hospital observation, at any time in order to ensure that a disability is accurately rated.

(Authority: 38 U.S.C. 501)

(b) Compensation cases —

(1) Scheduling reexaminations. Assignment of a prestabilization rating requires reexamination within the second 6 months period following separation from service. Following initial Department of Veterans Affairs examination, or any scheduled future or other examination, reexamination, if in order, will be scheduled within not less than 2 years nor more than 5 years within the judgment of the rating board, unless another time period is elsewhere specified.

(2) No periodic future examinations will be requested. In service-connected cases, no periodic reexamination will be scheduled:

(i) When the disability is established as static;

(ii) When the findings and symptoms are shown by examinations scheduled in paragraph (b)(2)(i) of this section or other examinations and hospital reports to have persisted without material improvement for a period of 5 years or more;

(iii) Where the disability from disease is permanent in character and of such nature that there is no likelihood of improvement;

(iv) In cases of veterans over 55 years of age, except under unusual circumstances;

(v) When the rating is a prescribed scheduled minimum rating; or

(vi) Where a combined disability evaluation would not be affected if the future examination should result in reduced evaluation for one or more conditions.

§ 3.343 Continuance of total disability ratings.

(a) General. Total disability ratings, when warranted by the severity of the condition and not granted purely because of hospital, surgical, or home treatment, or individual unemployability will not be reduced, in the absence of clear error, without examination showing material improvement in physical or mental condition. Examination reports showing material improvement must be evaluated in conjunction with all the facts of record, and consideration must be given particularly to whether the veteran attained improvement under the ordinary conditions of life, i.e., while working or actively seeking work or whether the symptoms have been brought under control by prolonged rest, or generally, by following a regimen which precludes work, and, if the latter, reduction from total disability ratings will not be considered

pending reexamination after a period of employment (3 to 6 months).

§ 3.344 Stabilization of disability evaluations.

(a) Examination reports indicating improvement. Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and Department of Veterans Affairs regulations governing disability compensation and pension. It is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. This applies to treatment of intercurrent diseases and exacerbations, including hospital reports, bedside examinations, examinations by designated physicians, and examinations in the absence of, or without taking full advantage of, laboratory facilities and the cooperation of specialists in related lines. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, arteriosclerotic heart disease, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Ratings on account of diseases which become comparatively symptom free (findings absent) after prolonged rest, e.g. residuals of phlebitis, arteriosclerotic heart disease, etc., will not be reduced on examinations reflecting the results of bed rest. Moreover, though material improvement in the physical or mental condition is clearly reflected the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. When syphilis of the central nervous system or alcoholic deterioration is diagnosed following a long prior history of psychosis, psychoneurosis, epilepsy, or the like, it is rarely possible to exclude persistence, in masked form, of the preceding innocently acquired manifestations. Rating boards encountering a change of diagnosis will exercise caution in the determination as to whether a change in diagnosis represents no more than a progression of an earlier diagnosis, an error in prior diagnosis or possibly a disease entity independent of the service-connected disability. When the new diagnosis reflects mental deficiency or personality disorder only, the possibility of only temporary remission of a super-imposed psychiatric disease will be borne in mind.

(b) Doubtful cases. If doubt remains, after according due consideration to all the evidence developed by the several items discussed in paragraph (a) of this section, the rating agency will continue the rating in effect, citing the former diagnosis with the new diagnosis in parentheses, and following the appropriate code there will be added the reference "Rating continued pending reexamination ___ months from this date, §3.344." The rating agency will determine on the basis of the facts in each individual case whether 18, 24 or 30 months will be allowed to elapse before the reexamination will be made.

(c) Disabilities which are likely to improve. The provisions of paragraphs (a) and (b) of this section apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating.

[26 FR 1586, Feb. 24, 1961; 58 FR 53660, Oct. 18, 1993]

Jim;

I am a 61-year old veteran diagnosed with prostate cancer. I have recently been turned down by the VA for treatment of the disease with proton therapy. The VA say they will cover regular radiation treatment, but not proton. They say this is because my disease is not service connected because I did not serve in Vietnam (got lucky, as I thought, - served in Germany). But obviously the question arises - why will they cover other treatment options OK, but balk when it comes to proton therapy?

Are you aware of any occasions of VA coverage for PCa proton treatment?

Have you any advice for me? Thanks for the good work you are doing!

Reply;

I don't know why. I'd guess costs play a factor. VA, just like any insurer, does all it can to contain costs. Unless you're 100% disabled or unless your cancer is service connected, you aren't in the highest tier of insurance protection...not so different than Blue Cross.

Health care in America really stinks. The recent battle over the overhauling of care in our country just amazed me. I was stunned to see Americans who stood up and smugly denied a guy like you free care.

In any other advanced society on earth you would go to any hospital and get exactly what you needed and there wouldn't be a bill. In the richest country ever you now have to search around for something that probably won't be available for you.

Proton Beam Therapy for prostate cancer hasn't been totally endorsed by all scientists yet. It's expensive and there can be complications associated with it. Other forms of treatment have a longer track record and outcomes are better documented.

If you'll click this link http://lmgtfy.com/?q=veterans+administration+proton+beam+therapy+prostate+cancer

I've searched up some articles that may shed more light for you. Good luck sir.

(Tech Note: The “search script” above is “Let Me Google That For You” at http://lmgtfy.com/ It’s well done and surprises people who aren’t used to seeing their cursor fly across the screen while someone invisible types in search terms.)

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